Crank v. State

Merrillville, contracts from P.C., purchased land installment Sayers, Compton & paid agreed upon price an UCC. Midland appellants. contracts, retained a set for the but Meyer, & Jeffery Dywan, Chudom J. price use centage purchase as a Schererville, appellee. fund, contingency contingency fund. The account, belonged reserve the holdback HOFFMAN, Judge. UCC, to Midland’s subject Company Midland-Guardian Appellants contracts accord- charge uncollectible back Indiana, Company of and Midland-Guardian ing pre-arranged formula. to a rehearing. The (Midland) petition for Inc. were, effect, are discussed history of this case specific facts and funds en- These v. United Con Midland-Guardian Co. separately trusted to Midland (1986), Ind.App., 499 N.E.2d Club sumers for. The holdback reserve and accounted raises its issues Midland 792. The obligation agreements did not create rehearing already have lengthy petition debt, they placed Midland repay a instead original opin in our fully addressed been responsibility to return the position in a petition ion; supplemental in its ac- separately of these identified remainder deci that our rehearing Midland claims It is the appropriate time. counts at the another re case conflicts with sion in this trust, knowingly exercis- breach of this Appeals. the Court of cent decision of prop- over UCC’s control unauthorized ephemeral nature of Analysis reveals the being Midland’s found erty, led to conflict, discus supposed but brief this criminal conversion. liable for harmony help solidify the essential sion will denied. rehearing is therefore the two cases. Rehearing denied. (1986), Ind.App., 498 Kopis Savage In Kopis, received appellant, J., P.J., STATON, GARRARD, purchase $40,000.00 deposit towards concur. Kopis comingled the property. of certain accounts and deposit other unrelated with money the sale when

refused to refund reversing the trial court’s through. In

fell Kopis committed criminal

finding that Dis- Appeals, Fourth the Court of

version

trict, comingled funds had specifically identi- separate,

ceased to be a longer Savage no chattel and that fiable CRANK, Eugene William specific property interest (Petitioner), Appellant to re- the refusal deposited. Thus funds pay $40,000.00 a failure turn support a debt, generally not will Indiana, Appellee STATE finding of conversion. (Respondent). complete- holding Kopis, supra, No. 79A02-8603-PC-92. original holding in ly consistent Indiana, Appeals of Court attempts create a Midland this case. Second District. to re- characterizing its refusal conflict as a accounts reserve turn the holdback Jan. debt; however, Midland pay a differences the fundamental fails to note situa- its own distinguish Kopis from

tion. engaged were

Midland and UCC Mid- relationship in which

ongoing business Trueblood, Lafayette,

J. Michael for pellant.

Linley Pearson, Atty. Gen., E. Louis E. Ransdell, Gen., Deputy Atty. Office of Gen., Atty. Indianapolis, appellee. BUCHANAN, Judge.

CASE SUMMARY Petitioner-appellant Eugene William (Crank) appeals Crank from the denial of relief,1 petition claiming that the trial court in order- to be tried and absentia, holding to a direct jurisdiction. of his absence from the Procedure, Ind.Rules of Post-Conviction Rule 24, 1984, court for correc- he filed his post-con- remand to the trial upon the ha- contending viction relief tion of the that because he improperly offender count. tried bitual and sentenced in ab- sentia, the trial court erred in determining Otherwise, judgment is affirmed. that he waived his to file a motion to error, precluding appel- thus direct FACTS alleged late review of errors which oc- 30, 1980, Crank was September On Following curred at trial.5 evidentiary battery deadly weap- a charged with hearing, peti- the trial court denied Crank’s on, battery causing felony,2 a class and C August tion on 1985. bodily injury, felony.3 a class C serious alleged was also to be an habitual Crank appeals. now Crank offender.4 in court on appeared Crank November ISSUES 17, 1980, and the trial court set an omnibus following We need address is- 19, 1981, jury and a trial date for sues: in date on March 1981. Crank was also trying 1. Did the trial court err in day, date. On that court on the omnibus in absentia? Crank

the trial court denied Crank’s motion for a 2. Did the trial court err in continuance, again and it ordered Crank Crank in absentia? appear on March 9 trial. Crank failed determining 3. Did the trial court err in in court on March 9. After the right that Crank waived his to effect knowingly trial court found that Crank had precluding di- voluntarily and fled rect review of trial trial, avoid Crank was tried in absentia. errors? 12, 1981, jury On March found Crank battery 4. Did the trial court err in guilty on both counts. The follow- ing day, jury determined when it failed to Crank be Crank an habitual offender. conviction was to enhanced as a result the habitual 29, 1981, the trial sen- On June determination? finding in tenced Crank absentia knowingly voluntarily and right present sentencing. Crank DECISION eight-year terms received two concurrent the trial court err in ISSUE ONE—Did battery imprisonment on the counts and trying in absentia? thirty-year sentence on the habitual crimi- as- consecutively nal count which was to run serts that the trial absentia violated battery for the sentences statutory right to be common law and The trial court determined that victions. contends there present at trial. Crank also to file a motion Crank had waived support evidence to was insufficient to correct error and effect a direct volun- finding that Crank had trial court’s due to his and continued absence himself from trial. tarily absented jurisdiction. Crank was maintains that the prehended February, in Arizona in 1982. State ordering and, its discretion in April returned to Indiana on acted within He was (1986). denying Crank’s trial court erred in Ind.Code 35-42-2-1 2. continuance, that the use of motion for a "mug" (1986). IC 35-42-2-1 improper, that the trial shot failing grant a mistrial court erred (1980) (amended presently IC 35-50-2-8 phase argument at the habitual offender final (1986)). codified at IC 35-50-2-8 the trial. 5. Crank contended there was insufficient evi- finding, support dence to the habitual offender proceed responds trial to because Crank proper that it was knowingly to be trial to sentence Crank in absen- present. tia because he waived his to be present absence. not err CONCLUSION—The court did conducting trial Crank’s absence. CONCLUSION—Thetrial court committed in sentencing no error absentia. Although a criminal has a defendant trial, present Fennell v. Our eourt has held that a de- U.S. present fendant has the at sen- VI; I, Ind. Const. amend. Const. art. tencing. Royal v. Ind. solely trial dates are not scheduled for the 390. When Crank was Fennell, 29, 1981, convenience of defendant. June IC 35-4.1-4- supra. 4(a) When defendant fails to provided as follows: trial, conclude punishable by “Unless the offense is one knowing the defendant’s absence is and only, a per- fine defendant shall be proceed and with the trial when sonally present at the time sentence is that the knew is evidence defendant If pronounced. the defendant is not of his trial date. scheduled Blatz sonally present when sentence is to be N.E.2d 486 Bullock v. pronounced, may the court issue a war- (1983), 451 N.E.2d 646. As we for his rant arrest.”6 recognized in 181 Brown v. State supreme has Our 102, 1058, Ind.App. 390 best despite statutory provi and constitutional knowledge evidence of this is the defend seemingly require sions which defend presence day ant’s in court on the the mat presence during proceedings, ant’s criminal ter is set for trial. provisions may those be waived “insofar as When Crank was No they in favor are of the accused.” Bull 17,1980, vember the trial court set a March ock, supra, jurisdic at 647. A number of 9, 1981 trial date. Record at 179. Crank recognized tions have that accused’s appeared pretrial hearing for a on right present sentencing may be at be hearing, 1981. At that gen absence. See trial court overruled Crank’s motion for a erally 3 Torcía, C. Wharton’s Criminal continuance, again and ordered Crank (12th 1975); 482 at 341-42 ed. PROCEDURE appear on 9 for at March trial. Record Annot., (1949) 6 A.L.R.2D 997 1-3 §§ knowledge 208. Crank had date his trial right therein. A cases cited defendant’s Therefore, appear. failed to he know clearly present at is waivable. ingly right at trial. Blatz, Fennell, supra; supra. believe Blatz, did not supra. See trial court hold it would be anomalous to that a de conducting err in trial in Crank’s absence. may present waive his fendant ISSUE TWO—Whether the trial proceedings prior sentencing at but can sentencing Crank in absentia? respect to sen waive preclude tencing. IC 35-38-1-4 does present tends it at sen court erred when waiver of pre tencing. purpose sentenced Crank absentia statute’s is to presence sentencing doing anything criminal State from or un defendant’s vent the preclude required. dertaking any is action that would (b) may against pronounced 6. This amended recodi- Sentence section was and is now corporation fied at IC 35-38-1-4 reads: absence of coun- defendant sel, “(a) counsel on the date of personally if fails to The defendant must be present pronounced. sentencing at the time sentence is notice." reasonable personally present If the is not defendant pronounced, is to be the court when sentence may issue a warrant for his arrest. correctly right to be CONCLUSION—The exercising his defendant that Crank waived that a defendant determined hold present. We precluding appel- present right to be take a direct waive from the his absence trial errors. if it is shown late review of proceeding time of that at the jurisdiction court has held that when Our voluntary. knowing and himself from absents defendant correctly determined The trial court during the time trial court’s himself voluntarily absented that Crank filing a motion to designated for hearing. June errors, the defendant waives sentence, pronounced the trial court Before to correct errors right to file the motion ab regarding Crank’s evidence it heard per consequently waives his (Robbins) testified Terry Robbins sence. review. Skol fect his surety on De bond he wrote Crank’s 275 Ind. nick v. State Following fail Crank’s cember Rules of Procedure N.E.2d 1103. Ind. trial, contacted Robbins appear at ure to that in all crimi provides Rule 16 Criminal parents who talked with Crank’s police and sixty days defendant shall have nal cases a De on the bond. as sureties were listed motion sentencing to file a from the date of efforts, unable to he was spite Robbins’s Crank was errors. Because to correct Depart Lafayette Police locate Crank. 19, 1981, the on June properly sentenced (Eberle) testi Detective Daniel Eberle ment run the period commenced to sixty-day time had con department police fied that following day. for Crank. search ducted an extensive rented that Crank investigation revealed voluntary ab a defendant’s While 1981, and early-May, in Lafayette in truck by is jurisdiction the from sence itself Merrillville, Indiana. Eberle drove know proof of a defendant’s in Oklahoma Crank had been learned that statutory right to his relinquishment of ap was When Crank mid-May, in (7th Cir.1974), Ruetz v. Lash appeal, see 10, 1982, he told prehended supreme court has our F.2d felt he that he left because Eberle from the a defendant absconds that when trial. receive a fair would not the time recaptured and is jurisdiction clearly demonstrated The evidence expired, have bringing appeal an limits at trial was absent very reason Crank the ap provide us to require do not the rules desire to sentencing of his was because every circumstance. in pellate review The trial proceedings. court avoid the proce “if the only must appeal reviewed properly determined court would-be-appellants all prescribed dures present at sentenc- his the complied with or substantially aré not err in did ing and therefore is excusable.” compliance of such him in absentia. Ind., (1984), 459 N.E.2d v. State Prater err in trial court THREE—Did ISSUE Skolnick, Chief Moreover, supra, in Crank waived determining that wrote: Givan Justice a direct to effect from the information upon the “[bjased review appellate precluding had that Skolnick County Sheriff Porter errors? trial jurisdic- Court’s Superior Porter fled the ar- clerk to court ordered tion, trial not have been he should gues that since The tri- from Skolnick. pleadings refuse absentia, the trial court in sentenced making such correct was al court had waived concluding that Crank his mo- attempt to file Skolnick’s order. appeal. right to a absent ... while errors correct tion to was jurisdiction, court’s ruling was that this responds The continuing ab- By his correctly denied. voluntarily absented since Crank designated time during the sence court. jurisdiction himself 59(C), Ind. Rule Tr.P. Skolnick CONCLUSION—The improperly [sic] file his motion to Crank when it failed to specify which felony conviction was to be consequently perfect correct errors and enhanced as a result of the habitual deter- appeal review.” mination. 463-64, Id. 275 Ind. at 417 N.E.2d at 1104. it proper While was absented himself from absentia, Crank in we observe the trial time of specify did not which of the two therefore waived his underlying felony convictions was en

present. Therefore, the trial court’s refus- hanced virtue of the habitual offender permit al to Crank to file a motion to sentencing, At determination. correct error his continued absence a thirty-year sentence on the proper. Skolnick, See supra. When habitual criminal count which was ordered Crank was apprehended February, 1982, to run consecutively to the concurrent sen bringing the time limits appeal a direct tences Crank received for both class C felo expired; he raised several ny battery convictions. alleged trial post- errors relief, conviction contending that these er- Our supreme has rors grounds constituted for relief. habitual offender determination is not a separate Rather, conviction of a crime. It remedy is clear that habitual offender finding results in an post-conviction relief is not a substitute enhanced sentence for underlying felo appeal. a direct Bailey v. State ny. Carter 1260; 1(b). P.C.R. Edwards assigned Errors at the trial level or Ind., 479 N.E.2d 541. Additionally, where argued on direct are deemed waived underlying felony are two or more post-conviction the context of relief. convictions, the trial court must Rather, Bailey, supra. being is enhanced process open relief raising to the the habitual offender determination. Pil issues not or known not available at the 1301; low v. State 479 N.E.2d original appeal. not, trial and It is how Edwards, supra; McBrady v. State ever, open raising to the of issues available Ind., Accordingly, 459 N.E.2d 719. this petitioner upon original appeal. to a Id. cause should be remanded for the trial Langley In 199, v. State 256 Ind. to correct the sentence to reflect 538, 267 N.E.2d our recog which underlying felony of Crank’s convic unreservedly nized that hold the door “[t]o tions is enhanced of the reason habitual open for post- review under the finding. rules, remedy regardless conviction of the Remanded to correct the im- preceded, circumstances per which would posed upon the habitual offender count. force post characterize relief conviction as judgment things all other af- some of ‘super-appeal’ contrary sort to its firmed. intended function.” Id. at 267 N.E.2d at 544. Crank to effect a SHIELDS, P.J., concurs. appeal. direct therefore decline to re SULLIVAN, J., separate concurs with view the trial errors were which opinion. raised the time in first SULLIVAN, Judge, relief. concurring. ISSUE FOUR—Did trial court err in agree I that the cause must be remanded

sentencing Crank when it failed to of correction the sentences. I agree conviction was to that the trial court did not err be enhanced as a result of the habitual denying Crank’s Petition for Post Convic- offender determination? tion Relief.

1361 period Post entire regard during to the merits of the isdiction With Petition, enti- appeal, the trial court was of a he fection direct has waived Conviction that might to conclude from evidence to tled assert matters which from voluntarily absented himself presented in timely have been upon jurisdiction knowing date not, agree. I peal. agree I do appear for I there- he trial. which was voluntary that from the trial and absence conduct agree it was not error to fore constitutes waiver of the the trial his absence. If appeal. of direct defendant Crank had returned to this and had not, however, that, agree as stated I do timely filed a motion correct errors and may majority, a defendant’s absence I believe perfected we could voluntary merely be held properly hold I am aware the trial date. Neither (1984) Ind., v. been waived. Prater agree knowledge of trial date able Because, in N.E.2d 39. the case 459 before coupled failure to constitutes with us, the defendant was absent knowing waiver perfection the entire of a correctly I set trial. the law is believe timely appeal, properly applied. waiver was (1983) forth v. State Bullock Supreme our Court N.E.2d wherein cou- knowledge of the trial date voluntary choice

pled with defendant’s effective appear, constitutes an missing from The crucial factor

waiver. equation majority postulated by of the de-

here is the absence numerous

fendant. Because absence, a defend- Cynthia causes a defendant’s Bobby Wil CRAWFORD (Defendants making a Below), should foreclosed from burn, ant not be Appellants if he can upon his belated attack conviction v. As explain held Hudson absence. Indiana, Appellee STATE (1984) Ind.App., Dist. 4th Below). (Plaintiff 1077; (1983) Dist. Ind. 4th Walton App., 454 v. State N.E.2d Gilbert No. 49A04-8604-CR-102. Dist., Ind.App. 2d Indiana, Appeals Court of may proceed District. Fourth if of a defendant the circumstanc- absence es are consistent Jan. opportuni- appear. earliest When Rehearings April Mar. Denied appears, ty the defendant permitted that his must be to demonstrate voluntary.

absence was not

Here, as in Ramos permitted the evidence the defendant

reasonable inference in order to avoid

fled sentencing. It was Crank’s burden hearing prove to

the Post Conviction agree that

contrary. not do I He did so. denied properly was

post conviction relief respect.

in this that because majority also holds jur- absent from

Case Details

Case Name: Crank v. State

Court Name: Indiana Court of Appeals

Date Published: Jan 29, 1987

Citation: 502 N.E.2d 1355

Docket Number: 79A02-8603-PC-92

Court Abbreviation: Ind. Ct. App.